Negligence

Question 1

Negligence is…

Answer 1

Conduct which involves failure to conform to a legal obligation and failure to protect the interests of someone with whose interests a defendant ought to be concerned (Tame v New South Wales).

Question 2

Established duties of care

Answer 2

manufacturer/consumer
road users 
professionals 
school authorities 
occupier/entrant 
employer/employee

Question 3

Non-delegable duties

Answer 3

Are not a cause of action.

• school authorities
• hospitals
• occupier
• employer

Question 4

Vicarious liability

Answer 4

When a defendant is held liable for the tort of another.
1. Tortious act must be committed
2. Tortfeasor must be an employee -> multi-facet approach (remuneration, tax, equipment, control to work etc.).
3. Must be committed within the course of employment (cannot be on a frolic).
If an employee is loaned out the employer generally remains vicariously liable unless there was some transfer of control.

Question 5

Novel duties of care arise…

Answer 5

when the duty of care has not previously been considered by a court.

Question 6

The neighbourhood principle

Answer 6

Reasonable foreseeability and proximity.

Question 7

Two stage approach (Anns)

Answer 7

• Reasonable foreseeability
• Are there any considerations ‘which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is wed or the damages to which a breach of it may give rise?’.

Question 8

Proximity approach

Answer 8

Jaensch v Coffey
- Reasonable foreseeability
- Proximity
Must have direct perception of the event or its aftermath.

Question 9

Multi-factor approach

Answer 9

Incorporates both the incremental and salient features approached.

• recognised by law
• reasonably foreseeable (normal fortitude, direct perception, sudden shock).
• other factors (relationship, control and vulnerability, coherency, indeterminate liability).

Question 10

Pure psychiatric injury

Answer 10

cannot be mere grief etc.
use multi-factor approach.
1. recognised by law.
2. reasonably foreseeable (direct perception, normal fortitude, sudden shock).
3. other factors (relationship, control, coherency, indeterminate liability).

Question 11

Pure economic loss is…

Answer 11

Pure economic loss is loss that is not consequential upon physical damage to person or property.

Question 12

Caltex Oil Tests

Answer 12

1. ascertained class test Gibbs and Mason JJ
2. Five salient features Stephens J
   
   • Defendants knowledge of likelihood of economic loss if the pipes were damaged.
   • Defendants knowledge of the existence of the pipe and its use.
   • Negligent infliction of damage to the property of a third party.
   • Nature of detriment suffered by the Plaintiff.
     Nature of the damages claimed.
3. Physical propinquity tests Jacobs J

Question 13

Breach consists of…

Answer 13

What is the standard of care?

Has the standard been breached?

Question 14

Standard of care

Answer 14

Question of law and objective test

Also considers any characteristics of the defendant or plaintiff that may decrease the standard of care.

Question 15

Characteristics of the defendant

Answer 15

children (altered) 
disability (not altered)
skill (not altered)
inexperience (not altered)
intoxication (not altered)
emergency (altered)

Question 16

Breach of standard of care

Answer 16

First, question of law and objective test.
CLA s 9(1) (a)(b)
- risk reasonably foreseeable
- not insignificant
CLA s 9(1)(c) relates to reasonable person, employ CLA s 9(2)
- probability
-likely seriousness
- burden of precautions
- social utility
-other factors (anticipation, profession and customary standards etc. )

Question 17

Damage

Answer 17

1. recognised at law or loss of chances (must be one or the other)
2. factual causation
   
   • Plaintiff must prove that their damage was caused by the defendant’s wrongful act or omission.
   • Did the defendant’s negligent conduct play a part in bringing about the plaintiff’s harm.
     There are two main issues of factual causation:
   • Standard of proof
   • Tests for factual causation
     2.1 Standard of Proof
   • Plaintiff must establish factual causation on the balance of probabilities (Tabet v Gett)
     ○ Greater than 50% likelihood that the defendant’s breach caused the plaintiff’s damage.
     ○ If causation is established on a 60% basis then the plaintiff is compensated fully, if it is established on a 40% basis then they are not compensated at all.
3. 2 Tests for Factual Causation
   
   • A question of fact but the test applied is a legal test.
   • S 11 of the CLA applies to breaches on or after 2 December 2002.

Necessary Condition of the Occurrence of the Harm s11(1)(a)

- 'But for' test (Wallace v Kam) 
- Would the plaintiff had suffered the harm 'but for' (if not for) the defendant's breach? 
- Defendant's act or omission caused the plaintiff's damage, if the damage would not have occurred if not for the defendant's act or omission. 
- A necessary condition is therefore 'a condition that must be present for the occurrance of the harm' Strong v Woolworths Ltd 

Multiple Causes:

1. "But for" test remains useful, in its negative sense, in eliminating from the multiple causes those which make no difference to the plaintiff's injury. 
2. S 11(1)(a) may still apply if it can be said that each cause remains a necessary condition of the occurrence of the plaintiff's harm (Zanner v Zanner).  3. Scope of liability  - reasonable foreseeability  - intervening acts  - legally significant cause

Question 18

A psychiatric injury arises when…

Answer 18

The psychiatric illness resulting from the defendant’s conduct is the only injury the plaintiff has suffered; or where the plaintiff has suffered a psychiatric injury as a consequence of physical injury suffered by a third party.

Question 19

Pure economic loss can include…

Answer 19

relational loss and negligent misrepresentation.

Question 20

Relational loss

Answer 20

where pure economic loss is suffered by a plaintiff as a result of a negligent act or omission which damages a third party’s person or property owned.

Question 21

Scope of liability

Answer 21

Is the plaintiff’s damage too remote a consequence of the defendant’s breach?
- A question of law.
- Places a limit on the extent to which a Def is deemed liable for the loss caused by their breach under s 11(1)(a) or (2).
- reasonable foreseeability
- interveening acts
- legally significant cause
○ A matter of policy.

Question 22

egg shell skull rule

Answer 22

Test of reasonable foreseeability is subject to the eggshell skull rule.
○ A tortfeasor must take their victim as they find them.
Once a defendant’s liability to a Plaintiff is found because the type of injury suffered was reasonably foreseeable, that liability will extend to any aggravation of the injury due to some inherent susceptibility of the plaintiff.

Question 23

reasonable foreseeability in scope of liability

Answer 23

A def. is not liable for all the consequences of their wrongful acts or omissions, only those which are reasonably foreseeable.
○ Always to be considered in every case

It’s the foreseeability of the kind of damage not the manner in which it occurs, or its extent.
–> egg shell skull rule

Question 24

intervening acts

Answer 24

• If a new independent act either:
  ○ Intervenes after the defendant’s wrongful conduct but before the damage is sustained by the plaintiff; or
  ○ Builds on the plaintiff’s injury caused by the defendant.
  
  • May be argued that the act breaks the chain of causation and releases the defendant from liability form that point in time
    ○ Policy choice that no liability is to attach.
  • For the chain to be broken, two characteristics must be present”:
    ○ Voluntary act
    ○ Causally independent act

Question 25

Voluntary act -> Intervening acts

Answer 25

A voluntary human reaction.

e.g. suicide has been labelled as not an intervening act.

Question 26

Causally Independent Act -> Intervening acts

Answer 26

• To be an intervening act, the subsequent event must not only be unrelated to the situation created by the earlier negligence; or
  
  • The intervening action must not, in the ordinary course od things, be the very kind of thing likely to happen as the result of the defendant’s negligence.

Question 27

Legally significant cause

Answer 27

i. Even though factual causation under s 11(1)(a) or (2) has already been found.
ii. Requires a consideration of:
1) Whether, for some policy reason, a defendant responsible for a plaintiff’s circumstances/harm should nevertheless be held not liable.
2) Whether the court is justified in imposing liability on the defendant. State Rail Authority v Wiegold/ Wallace/ Zanner.